The opinion of the court was delivered by: NOONAN
The Securities and Exchange Commission ('the Commission') having on September 22, 1958, filed a complaint alleging that the defendants were engaged and about to engage in acts and practices which constitute violations of Section 5(c) of the Securities Act of 1933, as amended, ('the Securities Act') 15 U.S.C.A. § 77e(c), and praying for preliminary and permanent injunctions pursuant to Section 20(b) of the Securities Act, 15 U.S.C.A. § 77t(b);
There having come on for hearing on September 30, 1958, the motion of the Commission for a preliminary injunction and motions of the defendants for dismissal of the Commission's complaint, or for judgment on the pleadings, or for summary judgment, and to enjoin certain proceedings instituted by the Commission against the defendants Carl M. Loeb, Rhoades & Co. ('Loeb Rhoades') and Dominick & Dominick, pursuant to Sections 15(b) and 15A of the Securities Exchange Act of 1934, as amended, 15 U.S.C.A. 78o(b) and 78o-3;
The Court having denied the motions of both the Commission and the defendants on October 20, 1958, and the Commission having thereafter ordered a private investigation in which testimony was taken on November 5, 6 and 7, 1958;
The parties having entered into a stipulation with respect to Findings of Fact, the Court adopts the Findings of Fact and Conclusions of Law herein set forth:
1. Defendant Arvida Corporation ('Arvida') was incorporated in Delaware on July 30, 1958, and it acquired certain real property in Florida, directly and indirectly, from defendant Arthur Vining Davis who at all times hereinafter described controlled Arvida and was also chairman of its board of directors.
2. Defendant Milton N. Weir is president and a director of Arvida.
3. Defendants Loeb Rhoades and Dominick & Dominick are each a partnership engaged, among other things, in the underwriting and distribution of securities to the public, and each is registered as a broker and dealer under the Securities Exchange Act of 1934.
4. Defendants Stanley R. Grant and Clifford W. Michel are general partners of Loeb Rhoades, and defendant Gardner D. Stout is a general partner of Dominick & Dominick.
5. On July 8, 1958, following a meeting of the defendants, or their representatives, at which a program was worked out contemplating the organization of Arvida, the aforementioned acquisition by Arvida of real property from Davis, and a public sale of securities by Arvida with Loeb Rhoades and Dominick & Dominick acting as underwriters, the following written statement was released to the press for publication:
'Arthur V. Davis Planning Development Of Real Estate Holdings
'Arthur Vining Davis, noted industrialist, who for many years has been accumulating real estate holdings in Southeast Florida announced today that he is entering into a new phase of his program for his Florida real estate. This new phase will emphasize planning and developing new communities and additions to existing communities for industrial, commercial, residential and recreation use. A primary objective of the program will be to attract new industry to Southeast Florida.
'Mr. Davis is organizing a new company to which he will transfer a major portion of his land holdings, including approximately 100,000 acres of undeveloped land in Dade, Broward and Palm Beach Counties. This company, to be known as Arvida Corporation, will launch a full scale program for the orderly development of the lands. Arrangements are being made to provide a large amount of new capital to implement the program. Mr. Davis said that his new program will not affect the operation of his various business enterprises in Florida.'
6. The substance of the foregoing release, or editorial comments thereon, appeared in the Miami News on July 9, 10 and 13, 1958, in the Miami Herald on July 10, 1958, and in the ...